"The Power That I Have On You Is To Spare You"

Originally posted on the Faculty Blog on November 23, 2008.

While instant messaging a high school friend yesterday, she mentioned that she had just seen the final episode of The West Wing on DVD (in which outgoing president Josiah Bartlett pardons ex-Director of Communications Toby Ziegler from a conviction for leaking national security secrets to The Washington Post), and then linked me to a recent Slate article handicapping President Bush’s potential pardons, while commenting that “maybe if Bush was more like Bartlett, he wouldn’t have to pardon so many of his cronies.” I commented that President Clinton (and most other presidents) have done the same thing, which caused her to rephrase her statement by replacing “Bush” with “all the real presidents.”

I know: there are any number of things lame duck presidents can do that should probably be reviewed and reconsidered before we get to presidential pardons. I also understand that the pardon is a valuable tool that allows the executive branch to swiftly undo so-called “travesties of law,” setting free the wrongly convicted. Yet the Slate article got me thinking about whether it isn’t worth considering a check on this particular executive power sometime soon, both on a state and federal level (though the misuse tends to be more egregious on the federal level).

Is it really fair that Bush is able to pardon (for example) Scooter Libby as he’s walking out the door? What about Clinton and his brother Roger, or Marc Rich? For that matter, assuming you agree that what President Nixon did was criminal, how about Ford pardoning Nixon minutes after Ford took office? There’s a pretty obvious reason why presidents wouldn’t make these pardons until they had one foot out the door: no one would let them get anything else done for the rest of their presidency if they tried this mid-term. But what kind of message does it send to people when Patty Hearst can be pardoned because of who her family is, while a state defendant in the same position serves hard time?

Furthermore, what about the implications of pardoning on the sentencing guidelines and mandatory minimums? In Wisconsin, OWI charges become felonies as of the fifth offense (which is far too high, in my opinion, but that’s a story for another post). As governors have as much power to pardon state crimes as presidents do for federal crimes, what if Governor Doyle pardoned someone’s OWI-fourth conviction? If that person gets convicted again, wouldn’t it be another OWI-fourth? If so, that’s the difference between a misdemeanor and a felony conviction, the difference between a possible maximum sentence of one year versus six years. This problem is only exacerbated at the federal level, where — particularly with drug crimes under the Controlled Substances Act — prior convictions can jump the sentencing thresholds significantly. Really, what’s to stop an outgoing executive from pardoning someone’s prior convictions at the same time that the person is facing current charges? Sure, you can argue that the P.R. would be horrible, but I guarantee you most people don’t think about Clinton’s pardons in calculating his worth as a president now.

Finally (and this is a point I only realized tonight), acceptance of a pardon — at least at the federal level — carries with it an admission of guilt. Hence, in order for people to get pardoned, they have to essentially admit that they committed the crimes for which they’re being pardoned. Now, this isn’t as much of an issue when the pardon goes to someone already convicted (though I’d like to note the irony in pardoning someone for being wrongfully convicted while at the same time making the person agree that he or she did it as part of the pardon.) But what about those people pardoned while facing civil and criminal charges for the same act? If accepting a pardon means admitting guilt, than wouldn’t that work the same way that a guilty plea does (i.e., it basically makes the civil suit an open-and-shut case)? If you’re an attorney representing a client on both cases, how would you advise your client if a pardon were extended? If you do take it, your client’s dodged a criminal conviction, but basically handed a blank check to the plaintiffs in the civil suit; if you don’t take it, your client will have to roll the dice on both cases.

I’m not saying that pardons are an entirely bad thing. I think that anyone could point to completely valid pardons as evidence that the pardon power works. Still, I was raised with the moral viewpoint that if you’re unwilling to say or do something in public, you shouldn’t say or do it in private. Pardoning people as you run away from the conflict seems a bit cowardly to me, and when every president does it as he leaves office just because he can, while rarely (if ever!) doing it while in office, it may be time to review whether the power needs tweaking.